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UN 'rules in favour' of Assange

After saying he would hand himself into British police if he lost, a United Nations panel has reportedly ruled in favour of Wikileaks founder Julian Assange's claim of "unlawful detention".

"[Assange] has been arbitrarily detained by Sweden and the United Kingdom since his arrest in London on 7 December 2010," the United Nations Working Group on Arbitrary Detention said in a statement released on Friday evening (AEST).

The panel called for the end to Assange's detention, "that his physical integrity and freedom of movement be respected, and that he should be entitled to an enforceable right to compensation".

Julian Assange speaks at a press conference via a video link from the Ecuadorian Embassy in London on February 5, 2016. Photo: Getty Images

The Working Group, made up of five independent experts, "considered that Mr. Assange has been subjected to different forms of deprivation of liberty," said Seong-Phil Hong, who heads the panel, referring to his initial detention in Wandsworth Prison, followed by house arrest and finally confinement at the Ecuadorian embassy in London.

It was not a unanimous decision.

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The Australian member of the Working Group, who shares Assange's nationality, excused herself from participating in the deliberations.

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Another member of the Working Group disagreed with the position of the majority and considered that the situation of Mr Assange is not one of detention and therefore falls outside the mandate of the Working Group.

A man photographs the sign on the balcony of the Ecuadorian embassy in London on Thursday. Photo: Getty Images

This was his publicly-stated reason for seeking asylum in the embassy in 2012. Others say he is trying to avoid official questioning over a rape allegation made in Sweden in 2010 (he has not been charged).

Whichever reason, it is now well-established that he does not want to go to Sweden, despite conditions in the embassy which his legal team described as "no access to fresh air or sunlight, his communications are restricted and often interfered with, he does not have access to adequate medical facilities, (and) he is subjected to a continuous and pervasive form of round-the-clock surveillance".

A European arrest warrant has been issued against Assange by Stockholm's District Court, and British police say they will enforce it at the first opportunity.

Another Swedish court has ordered that he should be detained on arrival in Sweden.

Assange has exhausted most legal avenues in the UK and Sweden to challenge the legal validity of the warrant or the consequent extradition.

So why is there a sudden flurry of reports that Assange may leave the embassy, as early as Friday?

On Friday evening, Australian time, a United Nations Working Group on Arbitrary Detention (WGAD) will release what it calls an 'Opinion', agreed by a panel of legal experts in Geneva, which is expected to find that Assange is under arbitrary detention in contravention of international law.

It is expected to agree that, although technically Assange can walk out of the building, the fact that he would immediately be put under arrest makes it an illusory freedom.

International law is, like most law, up for debate.

The right to personal liberty – the right not to be arbitrarily detained - is one of the most fundamental of all human rights.

The International Covenant on Civil and Political Rights, ratified by the UN general assembly in 1966 and to which Australia is a signatory, says "no-one shall be subject to arbitrary arrest or detention".

It is a binding treaty.

But then – who has the power to determine whether detention is arbitrary? And who enforces that decision?

If these were easy questions to answer many lawyers would be much less well-off than they are today.

The 'Justice 4 Assange' group claims that the WGAD would "order that he be released immediately and compensated".

"In this case the UK and Sweden must immediately release and compensate him," they said on their website.

The United Nations High Commissioner for Human Rights (the Working Group's boss) appears to agree.

On Thursday it released a video in which OHCHR official Christophe Peschoux said if the group concludes a person's rights have been violated then "the decision is indirectly, but still legally binding on the relevant authorities and states".

Others disagree, of course.

Including – for example – Assange's own lawyer, Per Samuelson, who the New York Times quoted saying "(the Opinion) is not legally binding, but I would take it for granted that Sweden would follow it".

Others in the 'not binding' camp include, crucially, the UK government, the British police, and the Swedish government and prosecutors.

So how can this question be tested?

One way would be for Assange to walk out of the embassy and see what happens.

But Fairfax understands that, instead of just assuming the decision is binding and roll the dice, Assange's legal team will probably seek to test it in a court of law.

They want to force the UK government to guarantee one simple thing: that Assange can leave the embassy, get into a car, go to the airport and fly to Ecuador.

This appears quite an unlikely thing for the British government to agree to, unless they are forced by a judge. And you can bet they'd probably appeal if they lost.

So we are back at (almost) square one.

Assange has won a PR battle. He has reminded everyone of his quandary. He has some new, influential allies. But if he wants legally - and practically - enforceable freedom he has a lot of hurdles yet to jump.

He has form on hinting at a sudden emergence. At a press conference in August 2014 he said he would "leave the embassy soon, but perhaps not for the reasons the Murdoch press are saying".

But he declined to elaborate.

And he didn't emerge "soon".

If he sticks to form, then his promised appearance at a press conference in Paddington at noon (London time) on Friday will be via video link from the same cramped, stuffy room that has been his home since June 19, 2012.